Miss Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/Byojet
[2014] FWCFB 1353
•24 FEBRUARY 2014
[2014] FWCFB 1353 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Jetscape Travel Pty Ltd T/A Travelscene/Byojet
(C2013/7855)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 FEBRUARY 2014 |
Appeal against decision [2013] FWC 9246 of Commissioner Spencer at Brisbane on 18 December 2013 in matter number U2013/14467.
[1] This is an appeal by Jill Thelma Lambert (the Appellant) against a decision 1 (Decision) of Commissioner Spencer in relation to a costs application she made under s.611 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal on 6 February 2014, Mr See of Counsel sought permission to appear for the Appellant and Mr Gray of Counsel sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[3] This appeal relates to an unfair dismissal application that was initially filed in the Fair Work Commission (the Commission) on 18 October 2012. Since that time, it has been the subject of a number of decisions and orders of the Commission, as outlined at length in the Decision below at [6]-[73].
[4] The Appellant commenced her employment with Jetscape Travel Pty Ltd T/A Travelscene/Byojet (the Respondent) on 23 February 2011 as a travel consultant. Her employment was terminated on 16 October 2012. In a decision of 21 June 2013, Commissioner Spencer found that the Appellant was dismissed from her employment after she refused to accept an alternative offer of employment based in New Zealand. 2 The Commissioner found that the dismissal was harsh, unjust or unreasonable as there was no valid reason given for the dismissal and the manner of dismissal was procedurally deficient.3 The Commissioner further found that the parties’ submissions on remedy were not adequate to consider the elements set out in s.392 of the Act, and directed the parties to file further submissions so that a remedy decision could be issued.
[5] In the interim, on 25 June 2013, the Appellant filed an application for costs.
[6] A decision on remedy was issued on 25 July 2013, in which Commissioner Spencer found that compensation was an appropriate remedy in the circumstances. 4 On 26 July 2013, an order was issued requiring the Respondent to pay the Appellant a specified amount of compensation.5
[7] Subsequently, the Respondent applied on 20 August 2013 for a variation to the order requiring payment of compensation. The variation sought by the Respondent was for the compensation to be paid by instalments pursuant to s.393 of the Act. The application was dismissed in a decision of Commissioner Spencer on 30 August 2013, principally because it was found that the matter ought to appropriately have been raised in the initial substantive matter or further in relation to remedy directions. 6 Additionally, the Commissioner found that the evidence filed in support of the application was not persuasive.7
[8] After much discourse between the parties and the Commission, it was eventually decided between the parties that the costs application should be heard on the papers, and on 18 December 2013, Commissioner Spencer issued a decision dismissing the costs application.
Decision at first instance
[9] Section 611 of the Act provides as follows:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4.1).”
[10] At first instance, the appellant sought to rely on both limbs of s.611(2) of the Act. The Commissioner dealt with each of the limbs separately in her Decision. In determining whether or not the application was made vexatiously, the Commissioner found:
“[116] Vexatious, in the sense used in s.611 of the Act, requires a party to prove that the main purpose of the application or response was to harass, annoy or embarrass the other party or that there was some collateral purpose in the matter other than settlement of the issues arising in the application. The question goes to the motive of the party, against whom a costs order is sought.
[117] The Applicant has not clearly articulated the basis of her claim in this regard. It is understood that the Applicant alleges that the Respondent engaged in a “course of conduct” in this matter that enlivens the costs power. Part of the reliance on the conduct of the Respondent, as alleged by the Applicant, is that the Respondent’s conduct was designed to delay proceedings at all stages. The Applicant also alleged that the conduct of the “Respondent was of such a nature, that any reasonable legal representative, should have assisted in the speedy resolution of the matter.”
[118] The Applicant relied upon the decision of Ranieri [[2011] FWA 9138] to support the proposition that the Respondent’s “changed position” during the course of the Hearing in the substantive application, put the Applicant to extra cost. In respect of this “changed position” the Applicant referred the Commission to a concession made by one of the Respondent’s witnesses during trial. However, having reviewed this portion of the transcript, which ultimately formed part of the substantive decision, it cannot be characterised as a “changed position”. It was a concession made by a Respondent witness during vigorous cross-examination on the issues. These matters are not irregular, in the course of proceedings.
[119] The Applicant has not clearly established that the Respondent “responded to the application” with any collateral purpose in the matter.
[120] The Applicant has not submitted that the purpose of the response was to harass, annoy or embarrass the Applicant. The conduct of the Respondent in the carriage of its case, cannot, on the balance of probabilities, be characterised in the manner that the Applicant submits, relevant to the award of costs.”
(footnotes omitted)
[11] In determining whether or not the application was made without reasonable cause the Commissioner found:
“[123] Both parties brought arguable cases before the Commission. The submissions and evidence, in respect of ss.394 of the Act, were considered against the tests in s.287 of the Act, and this was not a case that fell away against the legislative criteria in ss.611(2)(a) and (b) of the Act.
[124] The Applicant has not established, and the Commission is not satisfied on the balance of probabilities, that the Respondent’s response to the application was ‘without reasonable cause’. This is particularly so given the ‘substantial’ test that must be applied, and the ‘great care’ with which, the Commission must approach the award of costs. Simply because the Respondent’s argument was unsuccessful is not sufficient to justify the award of costs on the basis of a response being made ‘without reasonable cause’.”
(footnotes omitted)
[12] In determining whether or not it should have been apparent that there was no reasonable prospect of success the Commissioner found:
“[125] The test of ‘no reasonable prospect of success’ is an objective one and should be approached with caution and should only be reached when an application, or response as is the case in this matter, is ‘manifestly, untenable or groundless’.
[126] The parties submissions in relation to the legislative tests of ss.611(2)(a) and (b) have been considered.
[127] The Applicant has not established, and the Commission is not satisfied on the balance of probabilities, that the Respondent’s response had no reasonable prospect of success. The matter required a consideration of the submissions and evidence of both parties as a whole and was not manifestly, untenable or groundless. The Respondent held the view that the Applicant had accepted an alternate position. The fact that this view was erroneous is not enough to satisfy the Commission’s costs jurisdiction.”
(footnotes omitted)
The Appeal
[13] On 30 December 2013 the Appellant filed a Notice of Appeal. The Notice listed the following grounds of appeal:
“a) The Commission erred in not being satisfied that the Respondent responded to the application for unfair remedy, vexatiously for the purposes of Section 611(2)(a) of the Fair Work Act 2009.
b) The Commission erred in not being satisfied that the Respondent responded to the application for unfair remedy, without reasonable cause, for the purposes of Section 611(2)(a) of the Fair Work Act 2009.
c) The Commission erred in not being satisfied that it should have been reasonably apparent to the Respondent that the Respondent’s response to the application for unfair remedy, had no reasonable prospect of success, for the purposes of Section 611(2)(b) of the Fair Work Act 2009.
d) The Commission failed to give due weight and consideration to the fact that at no stage did the Applicant submit a resignation of her employment and that therefore, such an argument was not genuinely or reasonably open to the Respondent in response to the application for unfair remedy.
e) The Commission failed to give due weight and consideration to the Letter of Offer provided to the Appellant by the Respondent dated 11 October 2012 and the legal consequences that flowed as a result of that offer being made and the rejection of that offer.
f) The Commission failed to give due weight and consideration to the compounded affect [sic] of the Respondent’s conduct in response to the application for unfair remedy and in its ongoing defence of the application, that included:-
i. A refusal by the Respondent to personally attend a Conciliation Proceedings;
ii. Parallel proceedings that were commenced due to the Respondent’s failure to pay the Applicant her statutory wages and superannuation entitlements;
iii. Attempt to prolong proceedings and make a request for hearing for five days, when the case of the Respondent was concluded within 2 hours;
iv. Failure of a key employee of the Respondent to submit to an Order to Attend, in circumstances that appear highly questionable;
v. Withdrawal of affidavit material when challenged by Section 677 and 678 of the Fair Work Act;
vi. Change of critical dates within Respondent’s key witness’s Affidavit on the day of trial, following warning under Section 677 and 678 of the Fair Work Act;
vii. Subsequent conduct that included attempt to make installment [sic] payment in response to compensation order, in an attempt to be oppressive.
g) The Commission failed to give due weight and consideration to her own observation that the Respondent did initially, however erroneously, consider that the Applicant was a casual employee and therefore not a person protected from unfair dismissal law.
h) The Commission failed to give due weight and consideration to her own finding that the Respondent terminated the Applicant for refusal to accept a job offer in New Zealand.
i) The Commission failed to give due weight and consideration to the changing position of the Respondent, in which it initially had submitted that the Applicant had resigned and then later conceded that the Applicant was terminated at the request of one of the two Directors of the Respondent.
j) The Commission failed to give due weight and consideration to the amendment to a key critical date within the Affidavit of Ms Megan Shepherd at the date of the hearing of the substantive matter, when Ms Shepherd gave evidence, that substantially changed the case of the Respondent, in circumstances that could only have substantially prejudiced the conduct of the proceedings and the preparation of trial.
k) The Commission failed to give due weight and consideration to the withdrawal of a further Affidavit of Ms Megan Shepherd, that was completely irregular (provided three weeks after the requirement under the Directions) and again reflective of conduct that revealed a pattern of behaviour that was vexatious and demonstrative of the mala fides of the Respondent.
l) The Commission failed to give due weight and consideration to the inextricable link between the request of the Respondent to excuse Ms Jennifer Lennon an employee of the Respondent from being required to attend and give evidence in proceedings and the fact that Ms Lennon failed to submit to an Order to Compulsorily Attend so as to give evidence on behalf of the Appellant.”
(footnotes omitted)
[14] In relation to public interest, the Appellant submitted the following:
“1. The objects of the Fair Work Act 2009 are clear and unequivocal.
2. Those objects include to provide workplace relations laws that are fair to working Australians and to enable fairness and representation at work.
3. The public interest is required in this matter as the decision in first instance manifests an injustice that warrants the interrogation of a Full Bench of this Commission. It [is] also required to allow an intervention of a higher court or body, in such cases where a decision is infected by jurisdiction error.
4. The result of the Commissioner at first instance, having regard to the substantive decision and the specific findings of fact that were made, was counter intuitive.
5. The organisation of the Commission as provided for at Chapter 5, Part 5.1, Division 4 highlights the important role that is provided by a Full Bench in ensuring that the objects of the Act are being met.
6. There are some categories of case that must be unashamedly ones, in which there is an expectation that the successful applicant shall be entitled to some recovery of costs, in cases where the requirements of Section 611(2) of the Act are met. This is one such case and it requires the interrogation of the Full Bench to determine that claim.
7. The public interest requires that the Full Bench scrutinise the original decision maker’s decision, in order to ensure that the objects of the Act are being achieved.”
(footnotes omitted)
[15] It was submitted that the Commissioner utilised an unduly restrictive definition of ‘vexatious’ in her decision, and did not take into account a broad range of matters that the Appellant contended indicated vexatious conduct on the Respondent’s behalf. This vexatious conduct, it was submitted, included the Respondent’s purported change of position during the course of the hearing, the deprival of a witness who had been ordered to attend the Commission who was an employee of the Respondent and the Respondent’s attempt to make the compensation payments over three instalments.
[16] It was also submitted that the Commissioner did not have sufficient regard to the relevant facts when determining whether or not the Respondent’s response to the application was made without reasonable cause. It was submitted that the Commissioner inappropriately assessed the Respondent’s response over time, allowing it to “transform and change to suit the shifting versions of events of the two principal witness[es] and the submissions of Counsel...”
[17] It was further submitted that the Commissioner erred in not being satisfied that it should have been reasonably apparent to the Respondent that its response to the initial application had no reasonable prospect of success. It was submitted that the Respondent’s submission the Appellant had not been terminated was “manifestly untenable and groundless” and that this should have been obvious to the Respondent’s legal representatives when they first became involved in the matter.
[18] The Appellant made much of the difficulties associated with what was described as the Respondent’s shifting and changing case, submitting that such a position “cannot withstand the scrutiny of the legislation.” The Appellant’s submission that the Respondent’s case shifted and changed emphasised the affidavit of Ms Megan Shepherd, which was amended on the day of the hearing. It was submitted that this amendment substantially altered the nature of the Respondent’s case, as the amendment resulted in an assertion that the Appellant’s role had been filled prior to her termination. It was submitted that this change was not given due weight and consideration.
[19] In response, the Respondent submitted that the Commissioner properly took all matters into account. The Respondent submitted that it adapted its defence to the case presented by the Appellant. The Respondent submitted that the Appellant’s decision to be represented by experienced counsel throughout the proceedings was not occasioned by anything done by the Respondent.
[20] The Respondent further submitted that no specific ground was given as to error in the Commissioner’s decision, but that the Appellant appeared to be requesting more compensation than she was awarded. The Respondent submitted that the decision was made fairly and without error, and that there was no fresh evidence or anything else in the Appellant’s submissions that would entitle the Appellant to a successful appeal. The Respondent further relied on its earlier submissions, particularly those relating to costs, and sought orders for the appeal to be dismissed.
Consideration
[21] In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 8 In GlaxoSmithKline Australia Pty Ltd v Colin Makin9 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[22] We do not consider that the Appellant has in this instance demonstrated that it is in the public interest to grant it permission to appeal the Commissioner’s Decision.
[23] The Appellant has alleged that the Commissioner made errors of fact and errors of law. If the error of the decision maker relied upon by the Appellant is an error of fact, then the Full Bench must be satisfied it is a significant error of fact. 10 It is not enough that the Full Bench would have arrived at a different conclusion to that of the original decision maker; the relevant question is whether the finding made by the decision maker was reasonably open to him or her.
[24] Despite the Appellant’s submissions about the Respondent’s “changing case,” we are not satisfied that the Commissioner made a significant error of fact that resulted in a finding that was not reasonably open to her. Further, despite the Appellant’s numerous allegations of the Commissioner’s failure to give “due weight and consideration” to various factual considerations, we are not satisfied that the Commissioner made any findings of fact that were not reasonably open to her. It was for the Commissioner to evaluate the evidence and submissions before her, including taking into account any modifications to the cases put forward by both parties. It is clear from the Commissioner’s detailed Decision that she considered each of the factors before her, and made findings that were reasonably open to her.
[25] With respect to the Commissioner’s findings as to the various elements of s.611(2) of the Act, we do not consider that the Appellant has established that the Commissioner made an error of law in reaching her findings with respect to whether or not the Respondent’s response was made vexatiously or without reasonable cause. Nor do we consider that the Appellant has established that the Commissioner made an error of law in her consideration of whether or not it should have been reasonably apparent to the Respondent that its response had no reasonable prospect of success. Having considered the submissions made by both parties, we consider that the findings made by the Commissioner were open to her, and no error is revealed in her approach.
Conclusion
[26] We are not satisfied that it is in the public interest to grant the Appellant permission to appeal the Decision of the Commissioner at first instance. The conclusions reached by the Commissioner were reasonably open to her, and accordingly, the Full Bench cannot interfere with the decision. 11 Permission to appeal is not granted.
VICE PRESIDENT
Appearances:
A See of Counsel for Jill Thelma Lambert
T Gray of Counsel for Jetscape Travel Pty Ltd T/A Travelscene/Byojet
Hearing details:
2014.
Brisbane:
February 6.
1 Miss Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 9246.
2 Ms Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet[2013] FWC 2263.
3 Ibid, [117].
4 Ms Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet[2013] FWC 4355.
5 PR538528.
6 Miss Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 5995, [27].
7 Ibid [31]-[32].
8 Fair Work Act 2009, s.400(1).
9 [2010] FWAFB 5343 at [27].
10 Fair Work Act 2009, s.400(2).
11 House v The King (1936) 55 CLR 499.
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